Note: Decisions of a three-justice panel are not to be
considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2003-208

NOVEMBER TERM, 2003

Annette Meservey and Robert Meservey

v.

Nationwide Mutual Insurance Company

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APPEALED FROM:

Washington
Superior Court

DOCKET NO. 441-8-01 Wncv

Trial Judge: Mary Miles Teachout

In the above-entitled cause, the Clerk will enter:

Defendant insurer appeals from a superior court judgment
awarding plaintiffs, its insureds, damages of $104,327 under the policy
provision for uninsured motorist coverage. Insurer contends the court erred in:
(1) awarding damages in excess of the policy limit of $100,000; and (2) denying
its post-trial motion for new trial, remittitur, or amendment of the judgment.
We agree with the second contention, and therefore reverse and remand.

This case arose out of an automobile accident in which plaintiff
Annette Meservey was rear-ended by another vehicle. Plaintiff and her husband
are the named insureds under an automobile liability policy issued by defendant
insurer. Plaintiffs filed a complaint against insurer contending that Annette
Meservey suffered permanent injuries as the result of the negligence of the
other driver, who was uninsured, and that Robert Meservey suffered loss of
consortium. The parties stipulated before trial that the other driver=
s negligence had caused the accident, that the policy obligated insurer to pay
compensatory damages, including derivative claims, due by law to the insured
from the owner of an uninsured vehicle, and that plaintiff Annette Meservey had
incurred reasonable medical expenses of about $3500.

The case was tried to the court primarily on the issues of the
cause and the monetary value of plaintiffs=
pain and suffering, loss of enjoyment, and loss of income. Coverage was not at
issue, and the policy was not introduced into evidence. During his closing
argument, however, plaintiffs= counsel
alluded to the policy limits for uninsured motorist coverage, stating that
A the policy limit here is a hundred
thousand dollars,@ acknowledging that
the A maximum that I can get from
[insurer] is a hundred thousand dollars,@
and later asking the court to A award
the policy limit.@ In his proposed
findings submitted after trial, plaintiffs=
counsel reiterated that plaintiff Annette Meservey=
s A damages for medical bills, lost
income for the first four months, and her pain and suffering (in its broadest
sense) more than equal the $100,000 policy limit.@
The court issued a written decision, awarding plaintiff Annette Meservey damages
of $89,327 B $4327 for medical
expenses and the $85,000 balance for pain and suffering -- and awarding
plaintiff Robert Meservey damages of $15,000 for loss of consortium, for a total
award of $104,327.

Insurer objected to the proposed judgment order submitted by
plaintiffs, arguing that the amount awarded by the court was excessive, contrary
to the evidence, and over the policy limit of $100,000, and later moved for new
trial, remittitur, and amendment of judgment on the same grounds. The policy was
appended to the initial post-trial motion. Plaintiffs opposed the motion for new
trial, noting that the policy was not in evidence, but arguing nevertheless that
the awards for pain and suffering ($85,000) and loss of consortium ($15,000)
were within the $100,000 policy limit for uninsured motorist coverage, and that
the award for medical expenses of $4327 was covered by a separate policy
provision for medical benefits. The trial court denied the motion in a brief
entry order, stating that A [n]o
evidence or arguments were offered that were not already considered by the
court.@ This appeal followed.

Insurer contends the court erred in awarding an amount in excess
of the policy limit, asserting that the policy unambiguously limits coverage of
plaintiffs= claims for medical
expenses, pain and suffering, and loss of consortium to $100,000. Insurer
contends, therefore, that the court erred in refusing either to reopen the
judgment to take additional evidence on the scope of coverage issue or to
conform the judgment to the only evidence at trial concerning policy limits, to
wit, counsel= s statements alluding to
the policy limit of $100,000. Plaintiffs assert, in response, that there was no
evidence at trial specifically limiting coverage to $100,000, noting that the
policy was not admitted, but also reiterate their claim that the policy contains
a separate provision for medical expenses.

It is apparent from the record that the court and the parties
here were focused on the issue of determining the value of plaintiffs=
alleged injuries, not on defining the scope or limits of coverage under the
policy, as is readily attested by the absence of the policy in evidence. The
focus at trial on value instead of coverage might similarly explain the court=
s initial failure to make findings on the policy limits. Nevertheless, the court=
s award in excess of $100,000 unavoidably triggered the coverage issue, and
insurer= s post-trial motions plainly
obligated the court to reopen the judgment to address the issue, take additional
evidence if necessary, make findings, and B
if appropriate B amend the judgment.
Accordingly, we conclude that the matter must be remanded to the trial court for
this purpose. See New England P=
ship v. Rutland City Sch. Dist., 173 Vt. 69, 74 (2001) (court must make all
findings necessary to resolve issues before it, support its conclusions, and
provide adequate basis for appellate review). Whether
B as insurer contends
B counsel=
s references at trial and in his proposed findings to the $100,000 policy limit
demonstrate a clear and unambiguous intent to concede that coverage for all of
plaintiffs= claims, including medical
expenses, was within that limit is an issue which the court may consider on
remand. See Trotier v. Bassett, 811 A.2d 166, 168-69 (2002) (mem.)
(judicial admission must be clear, unequivocal concession of fact made for
express purpose of dispensing with formal proof of fact in issue).

Reversed and remanded for further proceedings consistent with
the views expressed herein.